Lord Reed opened his judgment in Cox (Respondent) v Ministry of Justice (Appellant) (“Cox”) by quoting the now well-known statement of Lord Phillips in Various Claimants v Catholic Child Welfare Society (“Christian Brothers”): “The law of vicarious liability is on the move.” As Lord Reed himself said in Cox, the law “has not yet come to a stop”, and still it does not as on 1st April 2020 the Supreme Court handed down two more judgments which addressed the law on vicarious liability.
WM Morrison Supermarkets plc v Various Claimants (‘the Morrisons case’)
The Morrisons case concerns the circumstances in which an employer is vicariously liable for wrongs committed by its employees, and also whether vicarious liability may arise for breaches by an employee of duties imposed by the Data Protection Act 1998 (“DPA”). The Court held that Morrisons was not responsible for the criminal acts of its employee in the circumstances of the case.
The case concerned actions for breach of statutory duty under the DPA, misuse of private information, and breach of confidence by employees of Morrisons after a disgruntled employee, Skelton, had deliberately leaked the personal data of tens of thousands of his colleagues on a file sharing internet site and to newspapers. The claimants alleged that Morrisons was vicariously liable for Skelton’s illegal acts.
At trial, the judge concluded that Morrisons bore no primary responsibility for Skelton’s acts but was vicariously liable on each basis claimed. The judge also held that Skelton had acted in the course of his employment, relying on Lord Toulson’s judgment in Mohamud v WM Morrison Supermarkets plc. Morrisons’ subsequent appeal to the Court of Appeal was dismissed.
The Supreme Court (Lord Reed delivering the judgment) allowed Morrison’s further appeal:
Barclays Bank plc v Various Claimants (‘the Barclays Bank case’)
In the Barclays Bank case the Supreme Court was asked to decide whether Barclays Bank should be held vicariously liable for sexual assaults, allegedly committed between 1968 and about 1984, by the late Dr Gordon Bates. The Supreme Court unanimously allowed Barclays’ appeal, and held that it is not vicariously liable for Dr Bates’ alleged wrongdoing. Lady Hale delivered the Court’s judgment.
Dr Bates was a self-employed medical practitioner. Applicants for jobs with Barclays would be offered a job, subject to passing a medical examination and obtaining satisfactory results in their GCE examinations. Medical appointments were conducted for Barclays by Dr Bates who provided him with a pro forma report to be filled headed “Barclays Confidential Medical Report”. Dr Bates was paid a fee for each report but was not employed by Barclays or retained by it between each examination. Dr Bates conducted the (unchaperoned) medical examinations in a consulting room at his home and is alleged to have sexually assaulted the 126 claimants in this group action during their medical examinations. After Dr Bates died in 2009, the claimants sought damages from Barclays. At first instance, the judge held that Barclays was vicariously liable for any assaults proved to have been perpetrated. The Court of Appeal agreed. Barclays successfully appealed to the Supreme Court.
Lady Hale highlights a number of important points in her reasoning:
Concluding comments on the judgments
As Lady Hale says at  of the Barclays Bank case, until these recent developments, it was largely assumed that a person would be an employee for all purposes – employment law, tax, social security and vicarious liability. Recent developments have broken that link as employment law now recognises two different types of “worker”: (a) those who work under a contract of employment and (b) those who work under a contract “whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual” (Employment Rights Act 1996, section 230(3)). However, Lady Hale emphasised that it would be going too far down the road to tidiness for the Supreme Court to align the common law concept of vicarious liability, developed for one set of reasons, with the statutory concept of “worker”, which was developed for a quite different set of reasons.
Lady Hale was perhaps referring to potential issues that will arise in another judgment which the Supreme Court will soon hear regarding Uber’s appeal as the employment rights of its drivers. Although the case is not about vicarious liability, it will strike at similar issues regarding employment status and may have far-reaching repercussions for workers in the gig economy and the like.
Whilst the decisions in these two cases are alike, and together represent a strong statement of clarification from the Supreme Court, the rationale behind the rulings is evidently different. In Morrisons, the court relied not only on the motivation of the disgruntled employee but also the scope of the work he had been asked to carry out, which was in contrast to the actions he ultimately took. Meanwhile, Barclays Bank concerned whether Dr Bates was truly independent.
As Lady Hale said when passing down judgment in the Barclays Bank case “[n]othing in this judgment seeks to deny or downplay the very serious harm,” but “the relationship between Dr Bates and the bank was not such that the bank should be made to pay for it.” There is symmetry between this comment and that made by Lord Reed in Morrisons that “the general principle… like many other principles of the law of tort, has to be applied with regard to the circumstances of the case before the court…The words “fairly and properly” are not, therefore, intended as an invitation to judges to decide cases according to their personal sense of justice.” With these comments, the Supreme Court make clear that this misinterpreted invitation is well and truly withdrawn.
Ruth Keating gives this short synopsis of the key elements of the decisions.
  UKSC 10
  UKSC 56
 WM Morrison Supermarkets plc v Various Claimants  UKSC 12 and Barclays Bank plc v Various Claimants  UKSC 13
  UKSC 11
  2 AC 1, para 35
  2 AC 366
  UKSC 60
  EWCA Civ 938